1. cultivate@cier (1) index: 1....

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Digitisation of Cultural Heritage in Europe

Promises & Challenges

Lucky Belder

Index:

1. Cultivate@CIER

2. Promises of digitisation – Policy & Rules1. UNESCO Declaration & Conventions2. European Union Policy & Regulations

3. Challenges in the digitisation process1. Financial, organisational and technical2. Legal: Copyright & Neighbouring rights law

• Possible solutions for the challenges• Financial, organisational and technical• Legal: Copyright

Digitisation of CulturalHeritage in Europe –Promises & Challenges

Lucky Belder

Index:

1. Cultivate@CIER

2. Promises of digitisation – Policy & Rules1. UNESCO Conventions & Declarations2. European Union Policy & Regulations


4. Possible solutions to the challenges1. Financial, organisational and technical2. Legal: Copyright


Lucky Belder

1. Cultivate@CIER (1)


• CULTIVATE headline:Copyrighting Creativity: Creative values, Cultural Heritage Institutions and Systems of Intellectual Property,

– wishes to investigate the relationship between creativity, intellectual property law, and cultural heritage from a European perspective and against the background of Europe's multitude of languages, cultures and legal traditions

• Cultivate.4@CIER: Cultural Heritage Institutions, Copyright and Cultural Diversity

– In recognition of the important role of cultural heritage institutions in making culture available and accessible, Cultivate.4 will address the relationship between copyright law and cultural heritage institutions in the context of the protection and promotion of cultural diversity. This project will examine how copyright contributes to innovation and creativity in the context of European cultural diversity and in relation to the accessibility of the cultural heritage of Indonesia both in Dutch cultural heritage institutions and in Indonesia.


• 4 Central Questions:

1. How does the protection of copyright contribute to the protection of cultural heritage and cultural diversity?

2. How does the protection of copyright interfere with the tasks ofcultural heritage institutions to preserve, document and communicate the cultural expressions in their collections?

3. What are considered to be ‘best practices’ in the governance of copyright by cultural heritage institutions?

4. How does the European experience relate to the experiences of cultural heritage institutions in Indonesia?

www.cultivate-cier.nl

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Index:

1. Cultivate@CIER


3. Challenges in the digitisation process1. Financial, organisational and technical2. Legal: Copyright law

4. Possible solutions for the challenges1. Financial, organisational and technical2. Legal: Copyright


Lucky Belder

2. Promises of digitisationOverview

2. Promises of digitisationPolicy & Rules – Unesco: (1)

1. UNESCO• Convention on the Means of Prohibiting and

Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970)

• Convention Concerning the Protection of The World Cultural and Natural Heritage (1972)

• Universal Declaration on Cultural Diversity (2001)

• Convention for the Safeguarding of Intangible Cultural Heritage (2003)

• Convention for the Protection and Promotion of the Diversity of Cultural Expressions (2005)

2. Promises of digitisation –Policy & Rules – Unesco: (2)

Universal Declaration on Cultural Diversity (2001)• (Art. 1) Culture takes diverse forms across time and space. This diversity

is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.

• (Art. 3) Cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence.

• (Art. 5) Cultural rights are an integral part of human rights, which are universal, invisible and interdependent […]


Universal Declaration on Cultural Diversity (2001)• (Art. 7) Creation draws on the roots of cultural tradition, but flourishes in

contact with other cultures. For this reason, heritage in all its forms must be preserved, enhanced and handed on to future generations as a record of human experience and aspirations, so as to foster creativity in all its diversity and to inspire genuine dialogue among cultures.

• (Art. 9) While ensuring the free circulation of ideas and works, cultural policies must create conditions conducive to the production and dissemination of diversified cultural goods and services through cultural industries that have the means to assert themselves at the local and global level. It is for each State, with due regard to its international obligations, to define its cultural policy and to implement it through the means it considers fit, whether by operational support or appropriate regulations.

• Market forces alone cannot guarantee the preservation and promotion of cultural diversity, […] From this perspective, the pre-eminence of public policy, in partnership with the private sector and civil society, must be reaffirmed.


Convention for the Safeguarding of Intangible CulturalHeritage (2003)

• Considering the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development, […]

• Considering that existing international agreements, recommendations and resolutions concerning the cultural and natural heritage need to be effectively enriched and supplementedby means of new provisions relating to the intangible cultural heritage,

• Considering the need to build greater awareness, especially among the younger generations, of the importance of the intangible cultural heritage and of its safeguarding,

• Considering that the international community should contribute, together with the States Parties to this Convention, to the safeguarding of such heritage in a spirit of cooperation and mutual assistance […]

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Convention for the Safeguarding of Intangible CulturalHeritage (2003)• (Art. 1) The purposes of this Convention are:

(a) to safeguard the intangible cultural heritage; (b) to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; (c) to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; (d) to provide for international cooperation and assistance.

• (Art. 2(1)) The “intangible cultural heritage” means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith –that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.


Convention for the Safeguarding of Intangible CulturalHeritage (2003)• (Art. 11) Each State Party shall:

(a) take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;

(b) among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant non-governmental organizations.

• (Art. 12) To ensure identification with a view to safeguarding, each Party State shall draw up, in a manner geared to its own situation, one or more inventories of the intangible cultural heritage present in its territory. These inventories shall be updated regularly.


Convention for the Protection and Promotion of the Diversityof Cultural Expressions (2005)• The objectives of this Convention are: • (a) to protect and promote the diversity of cultural expressions; […]• (c) to encourage dialogue among cultures with a view to ensuring wider

and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace;

[…]• (h) to reaffirm the sovereign rights of States to maintain, adopt

and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory;

• (i) to strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions.


Convention for the Protection and Promotion of the Diversityof Cultural Expressions (2005)• (Art. 2(7)) Equitable access to a rich and diversified range of

cultural expressions from all over the world and access of cultures to the means of expressions and dissemination constitute important elements for enhancing cultural diversity and encouraging mutual understanding.

• (Art. 4(7)) “Protection” means the adoption of measures aimed at the preservation, safeguarding and enhancement of the diversity of cultural expressions.

• (Art. 5(1)) The Parties […] reaffirm their sovereign right to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this Convention


Summarizing:

• Cultural Rights are an integral part of Human Rights

• Cultural diversity is as necessary to humankind as biodiversity is for nature. The defense of cultural heritage is an ethical imperative.

• Cultural heritage must be preserved, enhanced and passed on, as a record of human experience and to foster creativity.

• States must take measures in order to protect and promote cultural diversity, a.o. by safeguarding the (access to) intangible cultural heritage and of other cultural expressions

Digitisation of cultural heritage is a way of protecting and preserving it for the future. Granting access to the digitised cultural heritage is a means of promoting cultural diversity

2. Promises of digitisation –Policy & Rules – EU: (0)

Overview of Regulations and Policy Documents:• CoE Framework Convention on the Value of Cultural Heritage

for Society (2005)• EC Communication i2010: Digital libraries (2005)• EC Communication on an European agenda for culture in a

globalizing world (2007)• Green Paper Copyright in the Knowledge Economy (2008)• Treaty on the Functioning of the European Union (Lisbon Treaty

2010)• A Digital Agenda for Europe (2010)• [pi/s] Report of the Comité des Sages, The new Renaissance,

(jan. 2011)• Commission Recommendation on the digitsation and the online

accessibility of cultural material and digital preservation (oct. 2011)

• A single market for Intellectual Property Rights (may 2011)• [pi/s] Proposal Orphan Works Directive (may 2011)• [pi/s] Memorandum of Understanding: Out of Commerce-works

(2011)• Green Paper on the online distribution of audiovisual works in

the EU (july 2011).

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Treaty on the Functioning of the European Union, 2010 (Former EC-Treaty)

Article 167 1. The Union shall contribute to the flowering of the cultures of the Member

States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.

2 Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:– improvement of the knowledge and dissemination of the culture and history of the European peoples,– conservation and safeguarding of cultural heritage of European significance,– non-commercial cultural exchanges,– artistic and literary creation, including in the audiovisual sector.

3. […]4. The Union shall take cultural aspects into account in its action under other

provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.

[…]•


CoE Framework Convention on the Value of Cultural Heritagefor Society (2005)• The Parties to this Convention agree to:

a recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights;

[…]

d take the necessary steps to apply the provisions of this Convention concerning:

– the role of cultural heritage in the construction of apeaceful and democratic society, and in the processes of sustainable development and the promotion of cultural diversity;– greater synergy of competencies among all the public, institutional and private actors concerned.


i2010: The Digital Libraries Initiative (2005)

• The creation of a European Digital Library: Europeana– Target: Giving direct access to 30 million digitised objects by 2015,

including two million sound or audiovisual objects (COM(2011) 7579).

– Precondition: online accessibility (of European Cultural Heritage) by:

– Digitisation of analogue collections for the purpose of– Preservation and storage to ensure that further generations can

access the digital material and to prevent precious content being lost

• Context in time:– Google Book Project– Digital collection Library of Congress– Etc…


EC Communication on an European agenda for culture in a globalizing world COM(2007) 242• (3) […] This would be built on three interrelated sets of objectives:

- promotion of cultural diversity and intercultural dialogue;- promotion of culture as a catalyst for creativity in the framework of the Lisbon Strategy for growth and jobs;- promotion of culture as a vital element in the Union's international relations.

• (3.1) The flowering of the cultures of the Member States in respect of their national and regional diversity is an important EU objective assigned by the EC Treaty. In order to simultaneously bring our common heritage to the fore and recognise the contribution of all cultures present in our societies, cultural diversity needs to be nurtured in a context of openness and exchanges between different cultures. […] we need therefore to promote intercultural dialogue and intercultural competences. […] As citizens are among the main beneficiaries of developing cultural diversity, we need to facilitate their access to culture and cultural works.


A Digital Agenda for Europe COM(2010) 245/2• (2.7.3.) The 2005 UNESCO Convention on cultural diversity (ratified

at EU level in 2006), provides for the promotion and protection of cultural diversity across the world and applies equally to new digital environments. In fact the new digital media can permit a wider distribution of cultural and creative content, because the reproduction is cheaper and quicker and creates more opportunities for authors and content providers to reach new and larger – even global - audiences. The internet is also a driver of greater pluralism in the media, giving both access to a wider range of sources and points of view as well as the means for individuals – who might otherwise be denied the opportunity –to express themselves fully and openly.

Recommendation on the digitisation and online accessibility of cultural material and digital preservation• (1) The digitisation and preservation of Europe’s cultural

memory which includes print (books, journals, newspapers), photographs, museum objects, archival documents, sound and audiovisual material, monuments and archaeological sites (hereinafter ‘cultural material’) is one of the key areas tackled by the Digital Agenda. […]


• (7) The online accessibility of cultural material will make it possible for citizens throughout Europe to access and use it for leisure, studies or work. It will give Europe’s diverse and multilingual heritage a clear profile on the internet, and the digitisation of their assets will help Europe’s cultural institutions to continue carrying out their mission of giving access to and preserving our heritage in the digital environment.

• (8) Digitisation is an important means for ensuring greater access to and use of cultural material […]

EC Communication on a Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe COM(2011) 287• (3.3.5) Facilitating the preservation and the dissemination of Europe’s

rich cultural and intellectual heritage and encouraging the creation of European digital libraries is key for the development of the knowledge economy.

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Index:

1. Cultivate@CIER



4. Possible solutions for the challenges1. Financial, organisational and technical2. Legal: Copyright


Lucky Belder

3. Challenges in the digitisation process –Technical, organisational and financial (1-1)

1. Many CHI’s, large collections 2. Financial: Digitisation will cost over 100 bln3. Technological: Methods for Digitization4. Organizational: Who digitises what?


1. Many CHI’s, large collections

Report ‘The New Renaissance’: EU-Wide:– 77 million books– 24 million hours of Audiovisual material– 358 million photographs– 7543 million works of art– 1045 billion pages of archive


1. Many CHI’s, large collections: Three Dutch Examples:

• National Library and National Archive:– 6 million library items (books, newspapers, magazines, born-

digital material)– 6537 individual archives comprising millions of items (including

millions of photographs and maps)

Already digitized:– 8 million newspaper pages

Digitising:– 50.000 Early European Books (together with ProQuest)– 160.000 Out-of-copyright books (together with Google)– 1,5 million pages from magazines



• Institute for Vision and Sound– 750.000 hours of audiovisual material (radio- and television

programmes, documentaries, filmworks and music)– 20.000 historical ‘broadcast’-artefacts/objects– 2 million photo’s

Already digitized:– 20.000 hours ‘collection highlights’



• National Museum of Ethnology (Museum Volkenkunde)– 200.808 objects– 60.000 books– 13.000 photo’s and letters

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2. Financial: Digitisation in EU costs >€100 bln.

I2010 - Digital Libraries (2005):• Digitization is costly

– Labour intensive– Expensive equipment and software– Copyrights must be cleared

• Takes an considerable upfront investment:

Report ‘The New Renaissance’: – Library collections: € 19,77 bln.– Museum collections: € 38,73 bln.– National archives: € 41,87 bln.– Audiovisual archives: € 4,94 bln.

€3. Technological: Methods for digitization• Are still improving;• Optical Character Recognition is one of the challenges

4. Organizational: Who digitizes what?• Co-ordination at a central level is necessary• To prevent f.i. ‘double digitization’

3. Challenges in the digitisation process –Technical, organisational and financial (3, 4)

3. Challenges in the digitisation process –Copyright & Neigbouring Rights law (1)

©

3. Challenges in the digitisationprocess – Copyright law (1)

• Object of protection:– Literary, scientific or artistic works– That are original (not copied)– That are the authors own, intellectual creation

For example:– Books, pamphlets, lectures, dramatic works, musical

compositions, choreographies, databases, software programs

– Most types of CHI collection-items can be subject to copyright protection, for example the Dutch:

• National Library: Books, newspapers, magazines, photos• National Museum of Ethnology: books, mail correspondence,

photo’s and pictures• National Institute for Vision & Sound: TV- and radio programs,

musical recordings, photographs


• Right holder:– The actual creator of the work; his successors– In some cases: his employer– In other cases: a non-personal entity (company) – Copyright can be transferred to third parties

• Exclusive Exploitation Rights:– Reproduction (copying, scanning and saving, downloading)– Making available to the public (selling, exhibiting,

broadcasting, uploading)

Digitization:– The scanning/photographing of works in order to digitise

these can be qualified as ‘reproduction’– Disclosure/making accessible of these digital reproductions

is in most cases ‘making available’


• Limitations: time– Exclusive rights are limited in time and last in most cases:

• 70 years post mortem auctoris (after the authors’ death)• After the protection period has ended, a work becomes part of

the public domain.

Public domain-Out of copyright works-Non-IP protected material

Private domain- In copyright works

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• Limitations: exceptions• Certain exceptions to copyright can be implemented in

national copyright laws, that may enable specific uses of in-copyright (private domain) works without permission of the right holder, f.i. for CHI’s in Europe that are non-commercial and publicly accessible:

– Preservation copying: • Reproduction of single collection-items• For purposes of restoration, retention and rendering accessible

– Granting access via terminals on closed-circuit networks:• Making digitised collection-items available to the visitors• Stored on the closed-circuit network of the CHI• By means of in-house computer terminals

3. Challenges in the digitisationprocess – Neighbouring Rights law (1)

• Neighbouring rights – Objects & [Subjects]– Performance [the performer]– Recording [the performer /| producer of film]

• The first fixation of sounds /| images– Phonogram

• Recording of sounds (of a performance)– Broadcast

• Distribution of programmes

• Neighbouring rights – Duration– 50 years

• From first performance, manufacturing of, • sound recording, fixation or broadcast


• Neighbouring rights – exclusive rights• Exploitation rights

– Performer• Recording of a performance• Reproduction/rental/sales/other ‘bringing into circulation’• Broadcasting/rebroadcasting or other communication to • the public

– Phonogram producer• Reproduction of a recording manufactured by him• Rental/sales/other ‘bringing into circulation• Broadcasting/rebroadcasting or other communication

to the public


• Neighbouring rights – exceptions (parallel to copyright)

• Applicable to non-commercial, publicly accessible libraries, archives and museums:

– Preservation exception• Reproduction of first recording /| AV-fixation• For purposes of retention and rendering accessible

– Access to closed-circuit networks exception• Making available recordings/fixations forming part of the

collection of the CHI• Stored on the closed-circuit network of the CHI• By means of in-house computer terminals

3. Challenges in the digitisation process –Copyright & Neighbouring rights law (2)

• Challenge for the digitisation of Cultural Heritage in the EU of private domain works

– In sense of the protection and promotion of cultural diversity, cultural heritage and therefore human rights:

• There is no EU-wide exception to copyright/neighbouring rights covering the digitisation and digital disclosure of private-domain works

• Therefore: Permission for digitisation is required from the right holder

• Challenge 1: Obtaining permission of massive amounts of private-domain works

• Challenge 2: Works from which the right holder cannot be identified or located (orphan works) may generally not be digitised.

Index:

1. Cultivate@CIER



4. Possible solutions to the challenges1. Financial, organisational and technical2. Legal: Copyright


Lucky Belder

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4. Solutions to the challenges -Technological, organisational and financial (1)

• Most challenging: Raising € 100 bln

Comité des Sages advised in their Report “The New Renaissance”:

– Public funding is necessary and must be seen as ‘an investment’ rather than as a ‘subsidy’

– Public-Private-Partnerships• “an institutionalised form of co-operation between public and

private actors in which both sides invest different resources, in order to pursue complementary goals and to split gains and losses between them”

– Development (and promotion) of new business opportunities

4. Solutions to the challenges -Technological, organisational and financial (2)

• PPP’s– Should be lucrative for both the public partner (representing

the general interests of protecting and promoting cultural diversity by creating publicly accessible digitised copies of cultural heritage objects) and the private partner (who wants to make profit in return of the investment in digitising CH-objects)

– Therefore: maximum exclusive/preferential use of the digitised material: 7 years (CdS-report)

• Examples:– National Libraries (UK, DK, NL) and ProQuest– National Libraries and Google

4. Solutions to the challenges - Copyright (1)

• Proposed Directive Orphan Works– Publicly accessible CHI’s (libraries, educational

establishments, museums, archives, film heritage institutions, public broadcasting services) may

– After a diligent search through appointed ‘appropriate sources’ in the EU-Memberstate in which the work was first published or broadcast;

– Reproduce the work for purposes of digitisation [,…] and– Make the work available to the public

– Under the conditions that• The purpose of digitisation is non-commercial• Search-records are maintained• Records of the use are maintained• Where possible: the name of the rightholder is indicated• ‘Emerging’ rightholders are remunerated


• MoU: Key Principles on the Digitisation and making Available of Out-of-Commerce Works

– Publicly accessible CHI’s which are not for direct or indirect economic advantage may agree (basic principle: freedom of contract) with Rightholders, (Authors, Publishers and Collective Management Organisations) on the digitisation and making available, against a fair remuneration, of

– out-of-commerce works: that are books and journals, in all their manifestations no longer commercially available in customary channels.

– CMO’s may also agree with CHI’s on the digitisation of works of rightholders who are not represented by that CMO (ECL)

• Although rightholders may choose to opt-out.


• Re-assessing of current exceptions to copyright?– Green Paper Copyright in the Knowledge Economy

• Sended out questions to assess wether or not the currenctexceptions are deemed to function well for public, non-commercial CHI’s in carrying out their public tasks

– National initiatives:• Hargreaves Report• Speerpunten Teeven

Summarizing: (1)

• Cultural rights are an integral part of Human Rights• Cultural Heritage must therefore be preserved, enhanced

and passed on• Digitisation promises a way of protecting and preserving

cultural heritage and granting access to digitised cultural heritage is a means of promoting cultural diversity (f.i. Europeana)

• Many challenges in the digitisation process:– Financial, technical and organisational– Legal: Copyright & Neighbouring Rights law

• Identifying authors• Clearing Rights


Lucky Belder

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Summarizing: (2)

• Solutions to the challenges can be found in:– Financial, organisational & technical perspective:

• Public investments• Public Private Partnerships• New business models

– Legal perspective:• Regulatory measures

– Proposed Orphan Works Directive– Extended Collective Licensing– Re-assessing copyright/neighbouring rights exceptions

• Self-governance– Memorandum of Understanding


Lucky Belder

QUESTION: (1)

• Apart from the European perspective on digitisation of Cultural Heritage from the Member States,

• What about digitisation of shared cultural heritage?

• For example: The Dutch Museum for the Tropics– Hosting objects, artefacts, paintings, pictures, books and

correspondence etcetera originating from Indonesia…

QUESTION: (2)

• Indonesian Copyright Act

(Art. 10) The State shall hold the Copyright for works from prehistoric remains,historical and other national cultural objects.

The State shall hold the Copyright for folklores and works of popular culturethat are commonly owned, such as stories, legends, folk tales, epics, songs,handicrafts, choreography, dances, calligraphies and other artistic works.

To publish or reproduce the works as referred to in paragraph (2), any person whois not the citizen of Indonesia shall, firstly, seek permission from theinstitution related to the matter.

Further provisions regarding Copyright that are held by the State, as referred to in this Article, shall be regulated by Government Regulation.

(Art. 31) 1. The Copyright on works which are held or exercised by the State,pursuant to: – a. Article 10 paragraph (2), shall be valid without any time limit;

QUESTION: (3)

• Indonesian Copyright Act(Art. 15) e. limited reproduction of a work other than computer program limitedly by using any means whatsoever or by employing a similar process by a public library, scientific or educational institution and documentation centre of non-commercial nature, solely for the purpose of conducting their activities;

Are there any implications for digitisation/makingavailable by the Museum for the Tropics?

Thank you!

• Any questions?

Lucky Belder***

[email protected]


Lucky Belder